Three Commonly-Violated Ethics Rules

Since state bar disciplinary authorities do not always issue statistics on ethics violations, I am hesitant to proclaim this a list of the most-common reasons lawyers find themselves in ethical trouble. But the following rules are definitely among the most commonly violated.

The very first rule, adopted in some form in every state, seems simple enough: we must represent our clients competently. The trouble is, just about any time a client complains about our substantive work, a charge of failing to perform with competence becomes likely. Even if you truly did act appropriately, you might get accused of incompetence.

One reason failure to perform with competence is overcharged is that state bar prosecutors often fail to understand the private practice of law. For example, I know an attorney who negotiated for months with the opposing party before ultimately filing the client’s lawsuit, as all the pre-filing negotiation was geared toward settling the matter without resorting to litigation. The state bar threatened a charge of failure to perform with competence because the case was not immediately filed.

On the other hand, a charge of failure to perform with competence can merit. Recently I observed an attorney come to court an hour late for a trial. When he did arrive, he knew nothing about the case he was supposed to try. If his client had actually been there to see him, that client could well have lodged a complaint with the state bar, and a failure to perform with competence charge would have been appropriate.

Keep in mind the duty to perform competently — and all of its component parts. It not only means you must know your area of law, but also that you must prepare for each and every thing you do. You must never show up to a meeting, conference, or court date unprepared.

2. Rule 1.3 — Diligence

Like competence, diligence seems simple enough. But with busy schedules and unwieldy caseloads, many lawyers are not performing with the diligence our clients (and the regulators) expect.

Diligence means staying organized in order to meet all deadlines, following through on all potential legal theories, doing the necessary to run down possible avenues for your client, and not “dropping the ball” on any client needs.

3. Rule 1.7 — Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. [ABA Model Rule 1.7]

The complete rules on conflicts (including paragraph (b), referred to above) are quite lengthy as far as model rules go, but the concept is not complicated. Do not represent a party adverse to current clients.

The trouble rarely comes because you represented an obviously-adverse party. Instead, it comes because you took on a conflicting representation without knowing it.

Clients can waive conflicts, but only if you follow the rules for obtaining proper consent. Rule 1.7(b) says that if an exception to the conflict exists, a client may consent to the representation only if “(4) each affected client gives informed consent, confirmed in writing.”

This does not just mean the client initials a broad waiver in the retainer agreement. Many states have specific requirements, but in all states, you must actually discuss the matter with clients and suggest that they seek counsel on the conflict waiver before signing it.

Avoiding Trouble

These commonly-violated rules are probably the first three you learned in your professional responsibility class in law school. Yet they remain some of the most frequently charged. So how can you avoid them?

There are many ways to answer this question, but the best tip is simply to get organized. Know who your clients and their adversaries are by maintaining an up-to-date contact database, and use a solid conflict-checking system. Get your calendar in order so you never miss a deadline. Stay ahead of the game and don’t get overwhelmed by your obligations so that you are always putting out fires instead of working strategically. And keep abreast of the rules in your state, especially those relating to conflicts and waivers.

This was originally published on July 31, 2013. It was revised and republished on June 5, 2014.

Megan Zavieh is a state bar defense attorney and general ethics counselor admitted to practice in California, New York and New Jersey. She was recently named to the Executive Committee of the Solo and Small Firm Section of the California State Bar. She runs a virtual law practice at zaviehlaw.com and blogs at California State Bar Defense.

Seeing “competence” on a list of commonly-violated ethics rules is more than a little alarming.

Carly

What is that word doing on a site about lawyers?

http://samglover.net/ Sam Glover

Hurr.

Jonathan Kleiman

They’d be better off picking a niche anyway

Todd C. Scott

I’m glad you mentioned conflicts. Many lawyers don’t fully see the ethical problem (along with the destructive business consequences) until it’s too late. Conflicts are never obvious situations like, “I just sued my client.” They are more likely to be things like, “Board member for my client, Company X, just informed me that they are about to terminate my other client, CEO John Doe.”

Roy

It has always been my understanding that the vast majority of ethics complaints are service-related. The rules implicated are 1.2 (scope of representation); 1.3 (diligence); 1.4 (communication); and 1.5 (fees).

Astraea_Muse

The number one reason I see for complaints is lack of communication. This is even true in the cases that I see as a volunteer fee arbitrator (where usually a client refuses to pay or wants his or her money back.) If the lawyer’s competence is marginal, being a good communicator can save you from complaint. On the other hand, you can be the best at your practice, if you leave your client hanging without knowing what’s going on and why, you will see complaints.

Kris L. Canaday

Good article. Not surprised that competence made the list, but I am surprised and impressed to see that communication didn’t make the list.
I’m also surprised to see that conflicts made the list as a commonly
violated rule, although I did read a most interesting conflict story
recently!

Dru Stevenson

Not sure why it confounds you when other writers claim to list top violations. In my state (TX), the state bar can easily tally the disciplinary actions related to individual rules, and publishes an accurate statement of the most common bases for disciplinary actions against lawyers (neglect of client matter, failure to communicate with clients, and fees/client funds). There is nothing subjective about this list – it is empirical. Conflicts are a major ethical minefield, they are by far the most heavily tested subject on the MPRE, and Rule 1.7 has more accompanying Comments (adding nuance and examples) than any other rule in the ABA’s MRPC. At the same time, conflicts are rarely the standalone basis for state bar disciplinary actions – instead, the primary enforcement mechanisms for the conflict rules are disqualification and malpractice. Conflicts are now the most common basis for legal malpractice claims, but are seldom the basis of grievances, reprimands, or disbarment.

ZAF Wazniya

Great read for all, especially for those just entering the practice. I thought only lawyers in this end have ethical issues as those mentioned in the article. I have to still hear clients charging the lawyer for failure to perform with competence in my country. Introducing such measures would mitigate the problems clients face all the time.

http://www.tipsforlawyers.com/ Chris Hargreaves

In the realm of competence, we also see a lot of lawyers who end up in areas they don’t fully understand. It’s the litigator who ends up having to deal with tax issues, or the family lawyer who ends up with a personal injuries spin – we need to ensure that we constantly evaluate whether we’re even the appropriate lawyer for the job so we don’t get stuck